In the News
Report on the hazardous substances compliance system
The Environmental Protection Authority (EPA) recently released a report prepared by the Hazardous Substance Compliance System Technical Working Group and prepared for the Ministry for the Environment and the EPA. The purpose of the report was to recommend improvements at a system level to the hazardous substances compliance system to protect the environment, and the health and safety of people and communities.
The Report considered that the safe acquisition, use and disposal of hazardous substances is critical to human health, our environment and the economy – not just because of their intrinsically hazardous nature, but also because of the benefits derived from such substances, such as fighting diseases and protecting our biodiversity.
The Report concluded that the current CME (compliance, monitoring and enforcement) system is not fit for purpose. This was based on a range of factors, most significantly that there is very little regulation of volumes used and that the oversight of the disposal of hazardous waste is weak. The Report also found that the current "multiple agency and place based arrangement" clutters the landscape with regulators and creates confusion, and that there are performance problems among CME agencies (including a lack of leadership).
The Report set out a range of essential elements of a fit for purpose hazardous substances CME, and made recommendations to improve the current system in light of those elements. Essential elements include (among other things):
- giving management of hazardous substances, their benefits and risks, a higher national priority strategically;
- developing a cost-effective operational and service delivery model for the nation including greater national reach for the EPA;
- leveraging industry and trade-based organisations as an integral part of the system; and
- reviewing the regulatory interventions tool kit to ensure each agency has access to the full suite of measures to enable timely, proportionate, equitable, risk based and cost-effective interventions.
A full copy of the Report can be found here.
Cabinet approves new space payload principles
On 17 December 2019, Cabinet approved a new set of principles to direct the approach taken in assessing when to grant payload permits under the Outer Space and High-altitude Activities Act (OSHAA). The new principles are intended to provide a more robust regulatory framework for New Zealand's growing space industry, as New Zealand generates increasing interest as an attractive location for testing new technology and commercial launching activity.
Under OSHAA, the Minister for Economic Development (currently Hon Phil Twyford) is responsible for authorising all payloads launched from New Zealand. The Minister may decline to grant a permit if they do not deem the proposed operations to be in the national interest.
The new principles will guide the Minister's approach to determining whether proposed space activities are in the 'national interest'. They are intended to promote greater consistency and transparency in payload permitting decisions. The four principles approved by Cabinet can be summarised as follows:
- Responsibility - avoiding New Zealand space activity causing harm to, or interfering with, the activities of others;
- Sustainability - adhering to sustainable practices to preserve the benefits of space for future generations;
- Safety - ensuring space activities do not jeopardise the safety of people on the ground or in space; and
- Ensuring that space activities authorised by the Government reflect New Zealand's values and interests, and align with broader policy settings.
Cabinet also approved a list of payload activities that will not be regarded as in New Zealand's national interest, and will not be authorised. This includes payloads that:
- contribute to nuclear weapons programmes or capabilities;
- have the intended end use of harming, interfering with, or destroying other spacecraft or systems on Earth;
- have the intended use of supporting or enabling specific defence, security or intelligence operations that are contrary to Government policy; and
- have an intended end use that is likely to cause serious or irreversible harm to the environment.
These principles will be applicable to all payload applications, regardless of the type of payload or applicant. There will be no legislative implications arising from these updates.
The Minister's press release, including a link to the Cabinet Paper, is available here.
Chief Ombudsman's inquiry into whether government agencies are 'gaming' the OIA
The Chief Ombudsman, Judge Peter Boshier, has launched an inquiry into how government agencies comply with their obligations under the Official Information Act 1982.
The inquiry comes five years after the former Chief Ombudsman, Dame Beverley Wakem, initiated an inquiry in response to growing concerns that some agencies or Ministers were 'gaming' the OIA. Her report, titled "Not a Game of Hide and Seek", found that although agencies generally met their obligations (which resulted in greater openness, transparency, and accountability), there were still improvements to be made.
The current inquiry aims to assess agencies on the extent to which they have addressed any weaknesses identified in "Not a Game of Hide and Seek". It also comes at a time when the Ombudsman's office is dealing with many complaints from people "frustrated at the slowness of agencies to respond to requests".
The current inquiry will measure agencies against the same criteria as "Not a Game of Hide and Seek". Both inquiries cover the actions of the following 12 agencies:
- State Services Commission
- Ministry of Justice
- Accident Compensation Corporation
- Department of Corrections
- Ministry of Education
- Ministry of Foreign Affairs and Trade
- Ministry of Health
- New Zealand Customs Service
- New Zealand Defence Force
- New Zealand Transport Agency
- Ministry of Social Development
- Ministry of Transport
The inquiry is happening a year before the general election. Chief Ombudsman Judge Peter Boshier believes that access to information is vital to create a well-informed voter base. Therefore, proper compliance with official information requests fosters a healthier democracy.
The inquiry sought input from people who have tried to access information from the agencies. Responses to the survey closed on Friday, 24 January.
When the Chief Ombudsman issues a provisional opinion, agencies will be given the chance to comment. The Chief Ombudsman will then consider these comments and publish 12 individual agency reports and one thematic report.
Update on single-use plastics ban
The Government has announced that it will build on its ban of single-use plastic bags by taking further steps to curb plastic waste.
Single-use plastic shopping bags of up to 70 microns in thickness were banned in July 2019 following the creation of regulations under the Waste Minimisation Act 2008. The regulations included biodegradable and compostable single-use plastic bags in the ban.
Following the release of the Chief Science Advisor's report Rethinking Plastics in Aotearoa New Zealand, the Prime Minister and Associate Minister for the Environment have signalled that the Government will continue to phase out more single-use plastics.
The Prime Minister stated that the Government's first target would be to move away from single-use packaging and beverage containers made of hard-to-recycle PVC and polystyrene, to high-value alternatives like PET, HDPE and polypropylene, which can be recycled and reprocessed.
The Government indicated that its next steps will include:
- stimulating innovation and development of solutions to the soft plastics problem;
- accelerating work with local government and industry on better and more consistent kerbside collection of recyclables;
- a container return scheme for drink bottles and cans;
- regulated product stewardship schemes for tough waste issues such as e-waste, tyres and batteries;
- a National Resource Recovery work programme in response to China and other countries’ bans on importing waste and recyclables;
- improving waste data;
- expanding and improving the landfill levy to help fund more ways to recover, re-use and reprocess materials; and
- a $40 million Provincial Growth Fund investment to turn plastic waste into useful material for businesses and consumers.
Associate Minister for the Environment Eugenie Sage aims to have the full Government response to the Rethinking Plastics report confirmed within six months.
Government releases report on Waitangi Tribunal Claim Progress
On 18 December 2019, the Government released its second report on the Waitangi Tribunal Claims Progress (Report). Section 81 of the Treaty of Waitangi Act 1975 requires the Minister for Maori Development (currently Hon Nanaia Mahuta) to provide Parliament and the public with an update on the Crown's implemented recommendations made by the Waitangi Tribunal (Tribunal).
In most cases, Tribunal recommendations are not binding on the Crown. However, in practice, the Crown recognises the Tribunal's findings and recommendations make a significant contribution to strengthening the relationship between Māori and the Crown.
The most recent Report covers the period 1 July 2018 to 30 June 2019. The Report addresses each Claim individually, by summarising the agency responsible, the primary findings and recommendations, and the status of the claim.
Upon the release of the Report, Hon Nanaia Mahuta, announced that the Tribunal is approaching the conclusion of the settlement process for historical Treaty claims, and could now shift to addressing contemporary issues raised through kaupapa claims. Contemporary kaupapa inquiries on Maori military veterans, the Takutai Moana Act and Mana Wahine are underway.
Hon Nanaia Mahuta also made reference to Prime Minister Jacinda Ardern's announcement in September 2019 that New Zealand history will be taught in all schools and kura by 2020, noting that "this commitment recognises there is a need to rectify omissions in our historical discourse that have affected how we see ourselves as a nation".
The full Report can be viewed here.
Consultation on climate and energy policy
The Government is currently consulting on two policy proposals relating to climate (conducted by the Ministry for the Environment) and energy (conducted by the Ministry of Business, Innovation and Employment).
The climate consultation seeks feedback on proposed changes to the Emission Trading Scheme (ETS), to support the Climate Change Response (Emissions Trading Reform) Amendment Bill, which is currently progressing through Parliament. The purpose of the consultation is to determine the detailed changes to the ETS, which will be set out in regulations.
In the consultation document, the Government proposes a provisional emissions budget for the period 2021-2025, which is expected to encourage emissions reduction in the interim period, before the Climate Change Commission provides its official recommendations in February 2021. The consultation also asks for feedback on possible ways to achieve the "ambitious but feasible" task of meeting the provisional budget. Options currently cited include fuel switching, accelerated efficiency improvements in the agricultural industry, and faster uptake of electric vehicles.
Concurrently, the Government is consulting on a strategy to boost renewable energy generation and energy efficiency. The discussion paper proposes a number of options to achieve the Government's goal of 100% renewable electricity by 2035. Options are divided into those that would:
- encourage energy efficiency and the uptake of renewable fuels in industry; and
- accelerate renewable electricity generation and infrastructure.
Submissions for both consultations are due on 28 February 2020. The Ministers' press release, which includes links to both consultation pages, is available here.
Amendments to legislation on unfair commercial practices
The Government recently introduced to Parliament the Fair Trading Amendment Bill (Bill), which seeks to address the gaps in protection against unfair commercial practices. The legislative amendment follows consultation on an options paper in 2019 by the Ministry of Business, Innovation and Employment (MBIE).
MBIE found that what is "unfair" is highly subjective, but can be broadly grouped into two categories. Unfair contract terms can create very one-sided contracts, which place one party in a position of strength over another. Unfair practices can also occur outside of the contract by using pressure tactics, deceptive conduct, or strict enforcement. In turn, this can reduce trust between businesses, increase costs, and restrict competition and productivity.
There is currently legislative protection against unfair practices in place; however, MBIE concluded that mechanisms should be introduced to strengthen these protections. The Bill amends the Fair Trading Act 1986 to incorporate the following changes:
- a prohibition against unconscionable conduct; and
- an extension of current protections against unfair contract terms in standard form consumer contracts, so that they also apply to business-to-business trading relationships that are valued below $250,000 per year.
Although "unconscionable" is not defined in the Bill, Commerce and Consumer Affairs Minister, Hon Kris Faafoi, stated that unconscionable conduct is "effectively serious misconduct that goes far beyond what is commercially necessary or appropriate." The Bill specifies factors that a Court may take into account when determining whether conduct has been unconscionable. The fine for breaching the prohibition will be up to $600,000.
In addition, the Bill increases consumer power to require uninvited sellers to leave or not enter their premises, given that the consumer is the resident or acting resident. This includes using written notices, such as "do not knock" stickers.
The Bill makes a number of smaller changes to improve consistency with other legislation and to improve the function of the Act. The Bill is currently awaiting its first reading.
The Minister's press release can be found here, and a full text of the Bill is available here.
Announcement of the draft New Zealand Rail Plan
On 13 December 2019, the Government released a draft New Zealand Rail Plan (the draft Rail Plan), which outlines the Government's vision and priorities for rail. It incorporates the recommendations of the cross-agency Future of Rail review, which recognised that significant parts of the rail network were "facing a state of managed decline".
The long-term vision is for the national rail network to provide modern transit systems in large cities, and to allow for increasing volumes of freight to be moved off roads and onto rail. The draft Rail Plan applies only to the heavy rail network in New Zealand, and not to light rail investments.
The draft Rail Plan is split into four sections:
- "Strategic Context" outlines the potential for a rail contribution, and why changes are required to our current system;
- "Strategic Priorities for Rail" outlines the new planning and funding framework and the investment priorities for a reliable and resilient network;
- "Measuring the Benefits of Investment" outlines how delivery will be monitored to ensure outcomes are achieved;
- "What Next?" outlines how the changes will be implemented.
The Government has advised that, in order to implement the new planning and funding system, the Land Transport Management Act will need to be amended. The draft Rail Plan does not provide a definitive list of investments for rail over the next decade, nor does it provide a funding commitment for any of the projects outlined.
The Government's investment priorities in the draft Rail Plan will inform funding decisions in the draft Government Policy Statement on Land Transport 2021/22-2030/31 (GPS 2021), as well as future Budget considerations for Crown investment.
The Government is currently undertaking a formal engagement process on the draft Rail Plan. The final Rail Plan will be issued alongside the final GPS 2021, in the second half of 2020. Because this is the Government's first draft Rail Plan, it is expected that it will evolve and develop over time, and will be refreshed and updated alongside the GPS.
The Ministry of Transport's consultation site is available here, and the draft Rail Plan can be found here.
Auctioning of the 5G spectrum allocation
In December the Broadcasting, Communications and Digital Media Minister, Kris Faafoi, confirmed Cabinet's approval for the allocation of short-term rights to an unused portion of 3.5 GHz spectrum. 3.5GHz is the first spectrum band to be allocated for high speed 5G data services. Short-term rights will run from mid-2020 to 31 October 2022.
The decision also provides an opportunity for Māori interests in radio spectrum. Short-term allocation of spectrum will be made to Māori, and a support programme to build Māori capability in spectrum-related industries will be developed to maximise the benefits of this opportunity.
Minister Faafoi has noted that "early access to this spectrum will allow the telecommunications industry to move forward in their development and deployment of 5G services now, rather than waiting until long-term rights are switched on in November 2022.”
National rights will be assigned as management rights and will be allocated via auction, which is the standard method for allocating new cellular mobile spectrum rights in New Zealand and overseas. The auction conditions are as follows:
- A limit will be set on the amount of spectrum allocated to any one network operator (spectrum caps) in the auction to promote competition.
- A condition will be imposed that successful bidders will be required to return to the Crown existing management rights they hold elsewhere in the 3.5 GHz band to maximise the efficient use of this important spectrum.
- Minimal conditions of use are required of successful bidders, which reflects the short duration of these rights and no guarantee of long-term access to spectrum.
Long-term rights to 3.5 GHz spectrum are expected to begin in November 2022 and details of this allocation will continue to be developed over the next two years.
Upgraded free trade agreement between New Zealand and Singapore takes effect
The upgraded Agreement between New Zealand and Singapore on a Closer Economic Partnership (CEP) took effect on 1 January 2020. The new CEP is the first substantial upgrade of a free trade agreement to which New Zealand is a party.
Negotiations on the upgrade took less than a year, concluding in November 2018. The new CEP was signed in Singapore on 17 May 2019. The upgraded CEP involves two treaties (both binding) and two side letters (both non-binding). The new features highlighted by the Ministry of Foreign Affairs and Trade (MFAT) in the National Interest Paper include agreements to:
- mutually recognise accounting qualifications from the other nation;
- deepen regulatory cooperation;
- create a framework to assess whether products and processes meet mandatory requirements for the purposes of mutual recognition;
- allow businesses to freely transfer data in the course of business, while protecting the privacy and rights of consumers; and
- introduce a new committee to determine CEP disputes on biosecurity, food, and primary products.
In addition to the new features, the upgraded CEP amends and expands market access provisions for New Zealanders and modernises provisions protecting investment.
The original CEP, signed in 2000, was New Zealand's second bilateral free trade agreement. It entered into force in 2001. That agreement removed all tariffs on exports from Singapore to New Zealand. The updated CEP retains the specific provision that preserves the pre-eminence of the Treaty of Waitangi.
Nearly two decades later, Singapore and New Zealand agreed on an upgrade to the agreement to incorporate changes in trade policies and reconsider the CEP in light of challenges to the "rules-based system" and other free trade agreements. Further details about the upgraded CEP can be found here.
Productivity Commission releases final report on local government funding and financing
The Productivity Commission (Commission) has completed its inquiry into local government funding and financing and presented its final report and recommendations to the Government.
The Commission's central finding was that that the current property rates-based system remains appropriate for New Zealand and that no radical reform is required. However, the Commission identified areas of significant funding pressure, impacting small, rural councils servicing low-income communities in particular.
In releasing the final report, Commission Chair, Murray Sherwin noted: “stress points include coping with rapid population growth, central government handing councils more responsibilities and higher environmental standards, and increasing tourism. The costs of dealing with the impacts of climate change is also a major and growing pressure on some councils. Rising sea levels and more frequent and extreme weather events threaten many communities, and a lot of local infrastructure. These pressures are significant, rising and not evenly distributed around the country.”
To help councils deal with these pressures, the Commission makes 44 recommendations in the final report, including recommendations aimed at:
- councils' making better use of existing funding tools, as well as improving the transparency of local government funding decisions and performance;
- improving the relationship between central and local government, including an agreed protocol to end the practice of central government imposing responsibilities on local government without appropriate funding;
- central government co-funding to help councils redesign and possibly relocate infrastructure at-risk from climate change, as well to assist small, rural and low-income councils upgrade their three-waters infrastructure.
- new funding and financing tools for growth infrastructure, including the possibility of using Special Purpose Vehicles for councils nearing their debt limits, and user-charging to pay for and manage growth; and
- regional spatial planning to help coordinate council efforts as they plan for and respond to the various stresses, both regionally and with central government.
The full version of the final report can be viewed here.
Interim Pastoral Care Code introduced for tertiary accommodation providers
In conjunction with the passing of the Education (Pastoral Care) Amendment Bill, the Government released details of an interim Code of Practice that outlines the Government's expectations of Tertiary Education institutions in New Zealand (Interim Code).
The Bill primarily seeks to improve the safety and welfare of students in university halls of residence and other student accommodation. This follows recent tragedy at Sonoda student accommodation in Christchurch, which Education Minister, Hon Chris Hipkins, described as "exposing the limits of the old system of self-regulation. It was based on a voluntary code and failed to maintain adequate standards at tertiary providers around the country."
The Interim Code was in place from the start of 2020. It puts general duties on tertiary accommodation providers in relation to physical safety, advice and support services, mental health support, freedom from racism and discrimination, the transition to tertiary study and the opportunity to be involved in decision making on support services. The Interim Code sits alongside, and reflects, the existing Code of Practice for International Students.
Section 3 of the Code states that the purpose of the Code is to ensure that domestic tertiary students can succeed academically in a safe, healthy and supportive learning environment where they:
- are accepted and respected; and
- receive an education that values their identity, language and culture, and those of their family and whānau.
The Bill creates a new offence allowing the Crown to take legal action. Any breach of the Interim Code resulting in serious harm or death will carry a penalty up to $100,000. The Government has indicated that it will work with students, families, and the sector this year to identify a more permanent code for 2021.
The Minister's press release, including a link to the Interim Code, is available here.
Updates on drug research and testing
December saw the Government make two announcements related to drug research and testing.
First, Associate Transport Minister Julie Anne Genter revealed intentions to introduce a bill to Parliament that would enable roadside drug testing by 2021. New laws would give the Police powers to conduct oral fluid drug testing, with aims of deterring, detecting and prosecuting those driving under the influence of drugs.
Testing devices would initially screen for the drugs identified as most prevalent and high-risk amongst New Zealand drivers, including THC, methamphetamine, opiates, cocaine, MDMA and benzodiazepines. While testing would also identify the presence of impairing prescription drugs, a medical defence would be available to those using such medications in accordance with their prescriptions.
Drivers testing positive would face fines and immediate driving suspensions for a minimum of 12 hours. Those who fail compulsory impairment and blood tests may be liable for criminal penalties. Minister Genter expects the threshold for determining a criminal offence to align with the criminal limit for driving under the influence of alcohol.
Second, the Ministry of Health announced plans to fund a $59,000 study into drug checking programmes. In recent years, non-government organisations such as Know Your Stuff have enabled music festival attendees to test their recreational drugs for particularly harmful contents. In the first study of its kind, a criminology team at Victoria University of Wellington will assess whether such services are effective tools in harm reduction.
Health Minister, Hon David Clark noted that despite being illegal, recreational drug use remains commonplace at events such as festivals. He acknowledged that there is no way to make illegal drug use completely safe, but that the Government has an obligation to reduce drug harm where possible. The evidence gathered in the study will help inform any potential future steps the Government may take.
A full copy of the press releases are here and here.
Ahuriri Hapū Claims Settlement Bill introduced to give effect to the Deed of Settlement
The Ahuriri Hapū Deed of Settlement was signed on 2 November 2016, in response to the historical Treaty Claims of Ahuriri Hapu (Deed of Settlement). The document represents the full and final settlement of all historical claims of Ahuriri Hapū resulting from acts or omissions by the Crown before 21 September 1992.
On 20 December 2019 the Waitangi Tribunal released a report recommending the introduction of the Ahuriri Hapu Claims Settlement Bill (Bill), which was introduced that same day by Treaty of Waitangi Negotiations Minister Andrew Little. The Ahuriri Hapū Claims Settlement Bill is intended to give effect to the Deed of Settlement.
Ahuriri Hapū are based in the Hawkes Bay Region, and comprise seven Hapū, including Ngāti Hinepare, Ngāti Māhu, Ngāti Matepū, Ngāti Paarau (and Ngāi Tahu Ahi), Ngāi Tāwhao, Ngāti Tū, and Ngāi Te Ruruku.
The settlement package, that is set out in the Deed of Settlement includes:
- an historical account;
- Crown acknowledgements and apology;
- cultural redress;
- $19.5 million in financial and commercial redress; and
- the right to buy shares in specified Crown Forest Licensed lands.
In the Deed of Settlement, the Crown acknowledges that its acts and omissions caused prejudice to Ahuriri Hapū and breached the Treaty of Waitangi. Additionally, the Crown apologises for its policies, acts and omissions that left Ahuriri Hapū "virtually landless", and for the impacts that this loss of ancestral lands and resources has had on economic and social development, and cultural and spiritual wellbeing.
Cultural redress empowers Ahuriri Hapū to protect and conserve valuable cultural sites. This includes establishing a permanent statutory committee, Te Komiti Muriwai o Te Whanga, to promote the protection and enhancement of the environmental, economic, social, spiritual, historical and cultural values of Te Muriwai o Te Whanga (Ahuriri Estuary). A number of sites are vested in Ahuriri Hapū or their connection with Ahuriri Hapū recognised through Statutory Acknowledgements and Deeds of Recognition.
The settlement will benefit all members of Ahuriri Hapū who are registered with the Mana Ahuriri Trust, irrespective of where they live.
The Minister's press release, including a link to a summary of the Deed of Settlement, is available here.
MPI consultation on fisheries sustainability measures
Fisheries New Zealand has begun consulting on proposed changes to catch settings for rock lobster and scallops for the new fishing year beginning 1 April 2020.
The director of fisheries management says that this is to ensure the long-term sustainability of New Zealand fisheries. Fisheries New Zealand use scientific information to help determine sustainable catch limits.
As part of the April 2020 sustainability round, Fisheries New Zealand is seeking the public’s view on the following proposals:
- In Northland and Gisborne rock lobster fisheries, it is proposed that catch limits are decreased, while in Hawke’s Bay/Wellington, Otago, and Southland, it is proposed that catch limits increase.
- For scallops in Northland, it is proposed that the catch limit is decreased.
- The interim deemed value rates of a large number of stocks, managed under both April and October fishing years, are proposed for review.
- An annual catch entitlement is being considered for the following stocks: rubyfish in Southland and the Sub-Antarctic, trumpeter in the North West of the North Island and the Sub-Antarctic, white warehou in the North West of the North Island (WWA 9), and yellow-eyed mullet in Southland.
Any changes that alter the catch limits for rock lobster and scallops, or change deemed value rates will come into effect on 1 April 2020. Any changes to rubyfish, trumpeter, white warehou, or yellow-eyed mullet will come into effect on 1 October 2020.
The Fisheries New Zealand consultation page is available here. Consultation closes on 5 February 2020.